THE MARSHAL: The Tribunal is again in session.
DR. WANDSCHNEIDER: I ask to be permitted to continue my examination.
BY DR. WANDSCHNEIDER:
Q. Dr. Rothenberger, we had come to your description of your divergencies with Thierack and Himmler and the consequences which resulted therefrom against you. You had come to tho SD inquiry. Would you please supplement your statement concerning that point?
A. I had mentioned the fact that I had asked Thierack to protect me against that SD inquiry about myself, but in answering me he flatly refused; he said that was my personal affair, and all efforts to convince him that that was a matter for the Administration of Justice were in vain.
THE PRESIDENT: When was that?
THE WITNESS: At the beginning of October 1942 the inquiry occurred: it was the 9th of October.
DR. WANDSCHNEIDER: May it please the Tribunal, in this connection may I point out that the text of that inquiry, as well as the exchange of letters which followed, were available but were confiscated by a British officer, together with other material in favor of the defendant. I have made an application in these proceedings to get the material, which I designated precisely, also giving the date of its confiscation, but unfortunately it has not been received to this day. Therefore, I have to restrict myself to affidavits, and I shall submit these affidavits when I submit my documentary material.
THE WITNESS: In supplementing that, may I say only that the originals of that exchange of letters, which I shall describe, remained in the Reich Ministry of Justice, but I had copies of that correspondence in my home. However, soon after the surrender, at the beginning of June 1945, those copies were confiscated from my home.
A (Continuing) After Thierack had reused to protect me, I personally wrote to Himmler and expressed the thought in that letter that in my opinion it was an impossible thing, such a short time after my assuming office, that the SD should be in a position to pass an opinion about an Undersecretary who had just been appointed by Hitler.
I asked him for clarification, as well as for assurance that such inquiry should cease on principle.
That exchange of letters was carried on for several months, and the final result was a letter from Himmler--and it was not even signed by him personally--in which he said that he was sorry, but there was an oversight on the part of an Untersturmfuehrer, that is a low-ranking SS officer, in Koenigsberg, and that it was a matter which was of no further importance. He did not in fact apologize, and he did not offer any assurance for the future.
From that attitude on the part of Thierack and Himmler, of course, I gathered that both of them were standing on the same side in this respect.
Q. And then, at the end of 1943, how did your leaving the Reich Ministry of Justice come about?
A. Yesterday I briefly mentioned the fact that as early as in April of 1943, after Thierack had tried to transfer me to the Supreme Court (Reichsgericht) in January, but had stated that the time was not yet ripe for that, at that time I offered him my resignation, which he rejected. Furthermore, I had mentioned that at the same time that did not keep him from starting investigation proceedings against me the same time of that year 1943, without my knowledge, for the allegedly illegal procurement of furniture. That Thierack was primarily interested in getting rid of me in a manner which would give the impression to the outside world that I was being dishonorably discharged is proven by what I shall say briefly about my finally leaving the office.
Yesterday I also mentioned the fact that Thierack, as early as September 1942, kept my book for about three months, The German Judge -
THE PRESIDENT: You need not repeat what you said yesterday;
we remember it. Go on to something new.
THE WITNESS: Yes.
A. (Continuing) After Thierack had finally turned over this manuscript to the Party Chancellery and after it had been examined there for about six months, about in August or September -I am not quite sure about that date any more--of 1943 an SD report was received in the Ministry. Thierack put that SD report to me, and he told me it could be seen from that SD report that a plagiarism was contained in that book. That book contained a short historical review of the position of the judge in the old Germanic and Franconian era, and several sentences concerning that era were allegedly taken from a book by a Professor Fehr. Professor Fehr, Thierack told me, was an emigree, who lived in Switzerland, and a democrat; and there was concern that one day the London broadcasting station might broadcast the information that the German reform of the Administration of Justice really emanated from an emigree who was a democrat and lived in Switzerland. He said that was extremely dangerous from the point of view of foreign policy, and that I had to clear it up.
I did not know the name "Fehr" at that time at all. As can be seen from the preface, a considerable number of my assistants in Hamburg had participated in the work on this book, and one of these assistants dealt with the historical part of the book. One year before, when no mention was made about the possibility of publishing that book, he had compiled that historical data for me, which I needed for a lecture that I was supposed to give in the Reich Ministry of Justice. The other day I stated that in August of 1941 I gave a lecture in the Reich Ministry of Justice about the segregation of the profession of judges from the usual civil servant class. That historical compilation was made for that purpose.
I had the matter clarified by that assistant, Dr. Brueckmann, and he said yes, that was correct, he had used several sentences from a book by Professor Fehr in compiling that data, without having any opportunity at that time to know that it would lead to publication.
Thereupon I told Thierack what the causes for that oversight had been. At no time did anybody, not even Thierack, make the assertion that there was any guilt on anyone's part. But I told him the man who could be interested to see that some sentences of a general historic content such as could be found in any book, that such sentences would be also contained in my book would only be Prof. Fehr. Therefore I wrote a letter to Prof. Fehr, explained it to him, and asked him if that should be necessary for an interview and before that conference took place, it was intended to take place in January 1944 -- Thierack succeeded in having me dismissed, and that in the following manner: I was just on a duty trip at the beginning of December, 1943. During that time he went to Lammers and reported to Lammers that an application had been made by professors of the city of Hamburg who, he said, had complained that I was still in office. That, in other words, would have been colleagues of mine, because I myself was a professor at Hamburg at one time. And he added that from the point of view of foreign policy one could no longer maintain the responsibility of keeping me in office, and therefore he asked that Lammers should suggest my dismissal to Hitler. I was informed about that at the end of December 1943, that is to say before that conference with Fehr was to take place. At the end of 1943 I was suddenly called on the telephone -- I was at that time together with my family,-it was during Christmas -- that I had urgently to come to Berlin and take Thierack's place temporarily because he wanted to join his wife. Thierack called me into his office and told me, "Hitler has directed that you be dismissed". Upon my question "why" he answered, that matter with Fehr had gone so far on account of the application made by the professors from Hamburg that it was no longer bearable to keep me.
I told him that he himself didn't believe that, and I wanted to leave the room. Thereupon suddenly he became very friendly and soft and told me, why, of course the matter of that book was just the external pretense, but first of all in the course of this year and a quarter I had never succeeded in establishing good relations with the Party Chancellery and the SS. Moreover he said I was accused of having taken part in the funeral of Guertner, which I didn't understand at all, how anybody could be so stupid to charge one with having attended the funeral of an extremely descent former Reich Minister of Justice. I replied if these are the real reasons, then I was proud of it. Before I left him he again lied to me by saying yes, he would have liked too much to nominate me for the position of president of the Reich Supreme Court, but Lammers had raised opposition against that. Then a few days later I saw Lammers in order to inquire about the background of the story. Lammers told me just the opposite. It was he, he said, who tried to offer some office of some kind to me, but Thierack had been the person who rejected that. Through these circumstances the separation which had been pending for a long time actually took place, and without a new office, without gratitude, and without any compensation of any kind I left. And in accordance with that was the publication in all German newspapers where the following notice appeared, and I quote: "Change of office in the Reich Ministry of Justice. Upon the suggestion made by the Reich Minister of Justice the Fuehrer after effecting the transfer of Undersecretary Rothenberger into retirement (Wartenstand) has appointed Ministerialdirektor Klemm, who up to that time was in the Party Chancellery, Undersecretary in the Ministry of Justice." The effect of that publication was, on the whole, the following: One must have thought that I had stolen something, because dismissals during that period were very rare as such. But if a person was dismissed from office, then that was demonstrated or explained to the public in a very mild form, in a euphemistic form by promotion or by transfer into another office or some sort of honors, or a publication of some sort.
The London Broadcasting Station took the matter up-
THE PRESIDENT: I don't see what this had to do with the merits of the case. It is an interesting account, but I think you should get on to something new now. We are not concerned with what the London Broadcasting Company said about it. Just get along to something else, please.
DR. WANDSCHNEIDER: May I explain to the Tribunal it has something to do -
THE PRESIDENT: Just get along.
DR. WANDSCHNEIDER: It has something to do with the matter, Mr. President.
THE WITNESS: I have finished that account, Mr. President.
DR. WANDSCHNEIDER: I shall submit a document then on that matter. Now I come to the next question, Dr. Rothehberger.
THE WITNESS: May I still mention that also the information given me by Thierack that professors from Hamburg had complained was proved to be a lie. I made inquiry to the Hamburg faculty and the Hamburg faculty confirmed to Lammers that they never had made any application to Thierack or Lammers.
BY DR. WANDSCHNEIDER:
Q. Now, Dr. Rothenberger-
THE PRESIDENT: The difficulty is, this defendant isn't here being tried upon, the charges which Thierack made against him, but upon the charges which are in the indictment, and a brief explanation of his difficulties with his superiors was no doubt proper, but we think it has been extended very greatly.
DR. WANDSCHNEIDER. I am sorry, I didn't get the translation, Mr. President.
THE PRESIDENT: Well, proceed.
DR. WANDSCHNEIDER: Do you mean to say, Mr. President, that the form, the manner in which he was dismissed had nothing to do with the subject under discussion?
THE PRESIDENT: I mean that it has been adequately covered.
BY DR WANDSCHNEIDER :
Q. Now, Dr. Rothenberger, will you please come to the next question: Did you accept any new office after you were dismissed?
A. No.
Q. What did you do afterwards?
A. I returned to Hamburg and I became a notary in Hamburg.
Q. And you did not do anything else there then, did you?
A. No.
DR. WANDSCHNEIDER: Thank you. I have no further questions. My direct examination is finished.
THE PRESIDENT: Do any other defense counsel desire to make the witness their own ?
DR. SCHILF: (for the defendant Klemm) I have two brief questions for this witness.
DIRECT EXAMINATION BY DR. SCHILF:
Q: Witness, the day before yesterday you described your work as far as it was concerned with the problems of foreigners, and you discussed the fact that negotiations with the Party Chancellery took place, and that these negotiations were concerned with the liquidation of property of foreigners, in Germany. I ask you now were there during these negotiations and conferences any representatives of the Party Chancellery who belonged to the justice group within the Party Chancellery, and was the defendant Klemm present during these negotiations?
A: As for the internal structure of the Party Chancellery, that was one thing that I never knew. During the one oral conference which took place -- that was the conference of Under-Secretaries concerning the liquidation of enemy property -- Klemm was not present.
Q: The second question, Dr. Rothenberger. You mentioned also in connection with the Party Chancellery certain difficulties which arose when Ministerial Director Segelkin was appointed, and also District Court of Appeals Councillor Brauer -- difficulties which were presented on the port of the Party Chancellery. I should like to ask you, do you happen to know whether it was the personnel group of the Party Chancellory that presented these obstacles or the justice group or Klemm personally?
A: I said already that I was not informed about the internal structure of the Party Chancellery. The letters in both of these cases, Segelken and Brauer, as I remember were signed by Bormann himself.
Q: And you no longer recall whether anything was mentioned in these letters which would refer to the fact that it came from the Personnel office?
A: No.
Q: Thank you. I have no further question.
DIRECT EXAMINATION BY DR. THIELE-FREDERSDORF (for the defendant Dr. Joel):
Q: I ask the Tribunal to be permitted put one question to the witness.
Dr. Rothenberger, did Thierack, immediately after he assumed office as Reich Minister of Justice, mention to you that Dr. Joel was to leave the Reich Ministry of Justice?
A: Yes, several times.
Q: Thank you. I have no further questions.
DIRECT EXAMINATION BY DR. DOETZER (for the defendant Petersen):
Q: Dr. Rothenberger, did you know the defendant Petersen before the beginning of this trial?
A: No.
Q: Do you happen to know whether during the period when you were Under-Secretary in the Ministry of Justice, Petersen ever attended a meeting or conference which took place within or outside the Reich Ministry of Justice?
A: I was never concerned with the matters of the People's Court; therefore I am in no position to know that.
Q: Do you happen to know whether Petersen, being a lay judge, received the Judges' Letters under Thierack?
A: I cannot say anything about that wither.
Q: Thank you. Then that finishes my direct questions for the defendant Petersen.
For the defendant Nebelung, Dr. Rothenberger, I should like to put a few questions to you too. Did you know the defendant Nebelung at the time when he was President of the District Court of Appeals in Braunschweig?
A: Yes.
Q: Could you tell us something as to how Nebelung behaved as President of the District Court of Appeals concerning interventions on the part of offices outside of the Administration of Justice? Do you happen to know what his reputation was as the President of the District Court of Appeals? As I put that question to you, if I remember correctly I think of the distinction which you made between Presidents of District Courts of Appeals who were dependent on the Party and others who as firm characters stood up uncompromisingly for the interests of the constitutional state.
A: I met Nebelung as a colleague on conferences of Presidents of District Courts of Appeals which took place in Berlin regularly. During these sessions, he was very quiet, calm and collective. As for his district, Braunschweig, I cannot state any judgment of opinion.
Q: Thank you.
THE PRESIDENT: Is there any other direct examination? (No replies) The prosecution may cross examine.
MR. LA FOLLETTE: Before beginning, Your Honor, I would like the record to show that the prosecution now physically delivers Exhibit 531, which is NG--1918, to the Secretary-General, and presents German and English copies for distribution. May the record also show that the prosecution now physically delivers to the SecretaryGeneral, Exhibit 532, Document NG-1917, and also presents the requisite number of German and English copies for distribution.
THE PRESIDENT: They have both been received, your Honor. If your Honor please, the prosecution respectfully requests that it may be permitted to prepare its cross examination of Dr. Rothenberger and that it may begin its cross examination at nine-thirty on Monday morning. I would like to say in further explanation that very shortly after this case started, Mr. King and Mr. Wooleyhan and myself attempted to make a division of the work as to certain defendants. Mr. King specialized on the testimony with reference to the defendant Rothenberger. At about the time the defense of this case began, he was transferred, but with the understanding that he would continue to handle the case of this defendant and one or two others.
Last week, at the last of the week, he advised me that he might have to go to Duesseldorf. At that time the defendant Klemm had not been cross examined, and I did net know that his document books would not be ready. I therefore thought it would be a safe time for him to leave. Whether he returns in time I cannot say, but in any event his absence made it necessary for me to attempt to learn about the facts of this case against this defendant, which I had not anticipated I would have to do prior to the date this defendant took the stand. For that reason I ask the Court to permit the cross examination to begin on Monday.
THE PRESIDENT: Has either Dr. Schilf or Dr. Wandschneider any documents which could be put in this afternoon? We understood they were to be ready.
DR. WANDSCHNEIDER: May it please the Tribunal, I have not received, my document books, although I put them in at the right time. Therefore unfortunately my presentation of evidence is quite broken up because I had an interest, of course, to support the individual statements of the defendant by documents.
Therefore I would be very happy if at least that part of the evidence which is presented now should be presented all at one time and that therefore the cross examination should take place immediately after.
DR. SCHILF: Mr. President, I have neither received the document books.
THE PRESIDENT: Mr. Lafollette, I will consult with my associates as to whether this extension of time should be granted, but this Tribunal must not again be delayed and embarrassed by any kind of a transfer of anykind of a lawyer on either side of the case. I am not attempting to place any responsibility, but if a lawyer is going to cross examine a witness, a lawyer must be here when the witness is examined, so he will not have to wait for the transcript of testimony to find out what happened in court. That is completely beyond the pale.
MR. LaFOLLETTE: If your Honor please, I would like to be permitted to say one thing -- that even if I have to cross examine, I ask the Court to consider the fact that I have paid particular he went on the stand.
THE PRESIDENT: No expect counsel to be prepared to cross examine without such long delays as is now suggested, and, in the future that must be done.
The Tribunal rules -- and some of us with considerable reluctance -- that we will recess at this time until 9:30 Monday morning.
(The Tribunal adjourned until 21 July, 1947, at 0930 hours.)
Official Transcript of tho American Military Tribunal in the matter of the United States of America, against Josef Alstoetter, et al., defendants, sitting at Nuernberg, Germany, on 21 July 1947, The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, tho Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal. There will be order in the court.
THE PRESIDENT: Marshal, will you ascertain if the Defendants are all present?
THE MARSHAL: May it please your Honors, all the defendants are present in the court room with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been excused; let the proper notation be made.
DR. GRUBE: (Counsel for the defendant Lautz): May it please the Tribunal, I ask to be permitted to put the following request to the Tribunal.
The examination of the defendant Lautz, following the examination of Rothenberger, begins a new chapter because prosecutors and judges will be examined from that time on. To a large extent, the defense of prosecutors and judges is based on legal arguments, on interpretation of legal regulations which, so far, have not been submitted as documents by the prosecution. Therefore, within the scope of the entire defense, I have collected the regulations without which a defense of prosecutors and judges is not possible. I have compiled those regulations in special document books; I submitted those document books for translation more than three weeks ago, but until this day they have not been received. Tho matter would not be so bad if tho expert we wanted to call, Professor Dr. Niethammer, as expected, would have arrived today. Dr. Niethammer was supposed to testify as an expert about a typical German criminal trial and all the legal problems which arise concerning the prosecutor and the judge.
We were informed yesterday that although a vehicle was sent to Stuttgart by Captain Rice for Professor Niethammer, he cannot come now because of his activity as a university professor at Tuebingen, where he will be kept busy until the end of the semester, which will be in about two weeks.
The defense counsel for the group of prosecutors and judges are therefore faced with this problem: Without being at all in a position to explain all this to the Tribunal by means of an expert opinion or by documents, they are forced to deal with questions which cannot be elucidated without submission of legal regulations or expert opinion. Therefore, I ask the Tribunal to permit me to begin the examination of the defendant Lautz nor sooner than in about eight days, and that for the following reason. If Niethammer does not come, I have to change my interrogatory altogether, because I had prepared my questions expecting that the legal problems would be elucidated by my documents and by Professor Niethammer.
DR. KOESSL (Counsel for the defendant Rothaug): May it please the Tribunal, I ask that the motion put by Dr. Grube he approved. We are faced with a similar problem in the case of the judges under indictment. I wish to add to it, however, that a large number of files of court records have to be studied, and it must be proved that in each individual case the German law of procedure was taken into consideration.
Furthermore, we have had groat difficulties with the witnesses, and great difficulties in trying to bring before this Court the original records of the courts in question.
Furthermore, when individual cases are discussed, one has to refer to a great extent, to the substantial law and the law of procedure, and a discussion of this very difficult matter is quite impossible without having the document books. Therefore, if we were to discuss this matter without having the document books before us, a considerably longer period would be required for the translation, and it is to be doubted altogether whether these very difficult laws could be at all translated by the interpreters ex improvise.
I also ask, therefore, in conformance with the situation which also existed at the tire the documents of the prosecution were submitted, that a recess be decided upon, in order to afford us an opportunity to have our documents prepared so that we may have the necessary documentary evidence at hand.
DR. TIPP (Counsel for the defendant Barnickel): May it please the Tribunal, may I add the following to the statements made by my two colleagues?
The focal point of the presentation of evidence before military courts, as you gentlemen and we know, is the presentation of documents. Proofs based. on documentary evidence arc so much better than proofs based on documentary evidence are so much better than proofs brought about by the hearing of the defendant himself or by the hearing of witnesses. If the defense -- as has occurred up to now -- should be compelled to carry out the examination of the defendant without support of the appropriate documents, texts of laws or affidavits, then, for one, the examination of the defendant would have to be expanded and extended much more than if individual points could be supported by documents.
Furthermore, the submission of evidence loses a great deal. If everything that a defendant has to say can be submitted at the same time and put forth in the right light, then one can say that the defendant had a full opportunity and was permitted to defend himself, as it were, in accordance with the rules of procedure.
I should like to add something else. The defendants here -or at least some of them -- are in the dock because, allegedly, in the proceedings where they were judges or prosecutors, they did not afford the defendant all opportunities for his defense. Up to now we have had the impression--and the defendants have also had that impression--that we are before an absolutely objective court which affords them every opportunity for their defense.
If it has now come to the point where the defendants, at this moment, are not in a position to submit their documents, then it is not really the fault of the defendants or the defense, and certainly not the fault of the Tribunal. There are technical difficulties in the translation department which we, who are here in this court room, cannot remove. However, I do not believe that it would be in conformity with the rules of your law if these technical difficulties should go to the disadvantage of the defendants, who are certainly not at fault.
Another technical point. It is of little advantage to the Tribunal if we are given an opportunity to submit our documents later, after we have concluded our individual cases. We have seen an example of that in the Doctors' trial where, in some cases, we were forced to submit documents at the end, and not together with the rest of the presentation of our evidence.
The tribunal was not very much impressed with that method of submission of evidence, and neither were the defendants; and the prosecution also had difficulty with that manner of submission of evidence.
You gentlemen, as well as the prosecution, can only get the correct impression of the presentation of evidence if it is well-rounded and presented at one time.
For those reasons, I wish to agree with the statements made by my colleagues.
MR. LAFOLLETTE: May Your Honors please, may I assume that your Honors want to consult with each other that the Court, for the time being, wishes to consider these matters before passing; and would the Tribunal permit me to present now the petitions for citation which have been prepared in the matter of Dr. Marx? Or does the Tribunal wish to make any statement upon the pleas which have preceded me? I shall, of course, abide by the Tribunal's wish.
21-M-JP-1-5-Daniels (Int. Uiberall)
THE PRESIDENT: We would welcome the views of the prosecution as to the matter which has just been presented. The Tribunal will withhold its decision until it has had opportunity to consult with each other, and perhaps to ascertain what the situation is in the translation department. However, we would be glad to hear your views.
MR. LAFOLLETTE: If your Honors please, I will begin by saying that Mr. King is here and will conduct the cross-examination of Dr. Rothenberger. However, on behalf of Mr. King, now, as we did in the case of the defendant Klemm, we are forced to ask that we may reserve the right of further cross-examination after the Rothenberger documents have been presented. That is particularly true in this case, because a reading of the transcript or a review of the evidence reveals that the defendant Rothenberger, more often even than the defendant Klemm, referred to documents which he would present as substantiating his oral statements.
I bring that up first to reserve it, and secondly, to point out that, as far as it is possible, documentary evidence should be introduced at the time a defendant takes the stand or preceding his taking the stand. It does make for a more orderly presentation.
With reference to the matter which the counsel for the defendants who are judges and prosecutors have referred to, the Prosecution has prepared a brief on that matter on the law which we think is prevailing. If we are correct, much of the anticipated technical defects of compliance with German law would, at most, in our opinion, as our view of the law is concerned, would amount to the reception of evidence in mitigation and not a matter of plain defense. We had anticipated presenting that issue to the Tribunal when the evidence was presented by adding on objection to the relevancy or its materiality. This would not be a casual objection but a substantive objection. Perhaps if we could evolve some method by which that issue could be presented to the Tribunal before the evidence contained in those document books is presented, then much of this anticipated problem might be eliminated.
If the ruling is against us, of course, then we are confronted with this problem about which Dr. Grube and his associates have spoken. I don't know enough about the condition in the translation department, but it would certainly be beneficial to the Tribunal and the Prosecution if in some way we can get some document books into this Tribunal as quickly as possible. I don't know what else we can do. That is all the Prosecution can say at this time.
THE PRESIDENT: We observe that by coincidence or otherwise counsel for the defendants Schlegelberger and Klemm appear not to be here this morning. Those documents, as we have been informally advised, were to be ready.
MR. LA FOLLETTE: The Schlegelberger documents have gone in, Your Honor.
THE PRESIDENT: All of them?
MR. LA FOLLETTE: As far as I know, all of Dr. Kubuschok's documents Oh, yes, I beg your pardon. There was a book of supplemental documents that he wanted to submit. I had forgotten. I beg your pardon, Your Honor
THE PRESIDENT: I think the Tribunal would not be in a position to pass upon the petitions made this morning until we ascertain in some authoritative manner whether we cannot occupy ourselves with the documents in the immediate future relative to the defendants Schlegelberger and Klemm.